Negligence Flashcards
What is a tort
a breach of legal duty
What is the remedy for a contract breach compareed to the remedy for a tort breach
Damages awarded to put cliamant back in position as if the contract was not breached
Damages awared to put claimaint in position as if the tort was not breached
Just because contract not nessarily tort will depend on relationship
What if a contract exists and a tort breach takes place
the claimant can choose the remedy
What are the limitation periods
contract breach 6 years
tort breach 6 years
personal injury 3 years
What conditions must be satisfied for an action for tort to be succesful
1) there must be an act or omission by the defendent
2) the act or omission must have directly caused the damage or injury to claimant
3) court establish legal liability as a result of damage
Explain remotenes
The damage or loss suffered mst not be too remote / must be direct consequence of something the defendent did or didnt do
What is negligence
The breach of a legal duty to take care which results in damages to another person
What is the test to determine whether a duty of care exists
- Was the damage Reasonable & foreseable
- Neighbourhood principal (closeness between parties)
- Fair and resoanble to impose duty of care
- Is there public policy which exists to show no duty of care
What is economic loss
cant claim economic loss ie cost of replacing the ipod
How is a breach establish
Claimant proves there has been a breach (did not take resonable care)
Often res ipsa loquitor (the thing speaks for itself)
Burden of proof shift to defendent
What is particular skill principal
Level of skill and care is that of which a resonable man would possess.
If defendent possess a particular skill ie accountant then resoanble for that skill level
What is lack of skill principal
Trainee accountant still expected level of qulified accountant
Lack of hindsight principal
The test focus on the defendents knowledge at the time hindsight is irreclevant (not guidence given after horse yard)
Explain Body of opinion Advantage of risk Emergency Vulnerability
body of opinion - general practice of that body ie icaew or yard ownder
Advantage of risk - resonable care - weigh up benefits and risk of defendents actions
Emergency - if an emergency will take into consideration
Vulnerability - higher standard of care if vulnerable
What is normally recoverable
- Loss as a result of Personal injury
- Damage to property
- Financial loss directly connected to personal injury (loss of wage)
NOT pure financial loss ie lost profits
What are the main elements of a tort
On the balance of probabilities that
1) act or omission by defendent
2) act or omission directly caused damage or injury
3) court establish legal liability
NOT intention to cause (irrelevant)
What is the basis for decision in the Hedley Byrne v heller & partners case (bank)
That a duty is owed to a person the defendent knew or ought to have known would rely on the statement
Defences in negligence explain the following
- Contributory negligence
- Volenti non fit injuria
- Exclusion clauses
1) part responsible therefore reduced damages
2) consent to risk (not just aware of risks)
3) Exclusion clause in contract unless unfair
‘act of god’
What is vicarious liability
employer liable for employee action in course of employment
What is vicarious liability and agent
A principal is liable for agents action in course of agent relationship
In a negligence claim does a pre existing relationship need to exist
no (often strangers)
What does does the Donoghue v stevenson case show - ginger beer
Duty of care even if no contractual relationship
suffiecient degreen of proximety neighbour principal
Manufactor owe to of care to consumer of products
What does the Hedley Byrne case show (bank)
Redifined the neighbourhood principal by acknowledging that a claim for financial loss could be made if a special relationship exsisted
Learner driver hits vulnerable old women
reasonable care is that of a qualified drive although not exstended for vulnerability becasue was not aware she is vulnerable
What is the caparo case
auditors are not liable as accounts are intended for management of company not investing desions / protential lenders
In terms of auditors explain misleading info Exemplting liability liability limitation agreement Company indemnify auditor
Misleading - may be be fined
Void any exemption for liability
allowed to agree on liability limitation
What are the factors considered when establishing a duty of care in respect of a statement made
Purpose Skill Knowledge at time Responsability Size & class of person ie shareholders Exstent to which advice was given Forceasble Fair and equitable
Explain the unfair contract terms act
cannot exclude liability for personal injury
Business to Business and Business to consumer
What needs to be resoanbly forseable
THE TYPE OF DAMAGED SUFFERED not the manner or the exstent
